ORLANDO LOPEZ and ELIZABETH LOPEZ v. JOHN BORDEN, JAMES ROGAL, RAYMOND GERRY, CHRISTOPHER PLUNKETT, STEPHEN CARROLL, WILLIAM WEIMER, HOLGAR LUTHER, and SHELIA BECKER as they are members of the TOWN OF TOPSFIELD ZONING BOARD OF APPEALS; GREGORY CERINO, STEPHEN WHELAN, DANIEL FITZGERALD, MARTHA MORRISON, and ELIZABETH LOPEZ as they are members of the TOWN OF TOPSFIELD PLANNING BOARD; FRANK MARTINO and KRISTI MARTINO

MISC 266300

March 10, 2009

ESSEX, ss.

Long, J.

MEMORANDUM AND ORDER ON THE PARTIES' CROSS-MOTIONS FOR SUMMARY JUDGMENT

Introduction

This case is the plaintiffs, Orlando and Elizabeth Lopez, G.L. c. 40A, § 17 appeal from an August 23, 2000 decision of the defendant Topsfield Zoning Board of Appeals (the ZBA). That decision upheld the building inspectors denial of the Topsfield Planning Boards written request for zoning enforcement action against defendants Frank and Kristi Martino, owners of the property located at 4 North Commons Street, for allegedly exceeding the use allowed by the Martinos April 7, 1994 building permit. The permit, issued in connection with renovations to the interior of the building (a former church), allowed 1st floor  residence[;] 2nd floor  grandfathered assembly use and temp. occupancy  can occupy as residence 1st floor only[,] expires 10/31/94. The final certificate of occupancy issued on December 7, 1994.

The ZBA upheld the building inspectors denial based on its finding that, under G.L. c. 40A, § 7, the statute of limitations had run to challenge the building permit based upon any alleged violations of the zoning bylaw. The ZBA also found that, contrary to the building inspectors opinion, [Note 1] the Martinos use of the property for private functions was not a use as of right. Finally, although the ZBA found that the number of private functions held at the property was not excessive (presumably the basis for its affirmance of the denial of enforcement action), it imposed several conditions on the future use of the property to guide both the present and future owners . . . . Topsfield Zoning Board of Appeals Decision at 7 (Aug. 23, 2000 and filed with the town clerk on Aug. 24, 2000) (hereinafter, the ZBA Decision).

The Planning Board has not appealed from the ZBA Decision. Rather, this appeal is by the Lopezes, who own property abutting the Martinos. The Lopezes claim that the Martinos use of the property for commercial functions is unlawful, the building inspector did not have the authority to allow such uses in the original building permit, and the ZBAs decision allowing the Martinos to continue such uses exceeded its authority and was arbitrary and capricious. The Martinos deny the Lopezes claims, arguing that under G.L. c. 40A, § 7, the statute of limitations has run for any action regarding their building permit. Additionally, the Martinos claim that their use of the property for functions is allowed as of right.

The Martinos and Lopezes both filed motions for summary judgment. For the reasons set forth below, both the Martinos and Lopezes motions are ALLOWED in part and DENIED in part.

Plaintiffs Orlando and Elizabeth Lopez own the property located at 93 Main Street in Topsfield. Defendants Frank and Kristi Martino own the abutting property located at 4 North Commons Street. The Martinos purchased their property in 1994. Prior to that time, the property was owned and used by the Topsfield Congregational Church.

On April 7, 1994, the Martinos applied for and received a building permit in connection with interior renovations to change the first floor into a single-family residence. That permit states that they can use the first floor of their property as a residence and the second floor for grandfathered assembly use. There is also the notation, temp. occupancy  can occupy as residence 1st floor only. Expires 10/31/94. [Note 2]

After receiving their building permit, the Martinos used the second floor for the following activities. In May and June of 1994, aerobics classes were held. Answer of Defendants Frank and Kristi Martino to Plaintiffs First Set of Interrogatories at 2 (Jan. 8, 2001) (Answer to Interrogatories), attached as Ex. B to Plaintiffs Cross-Motion for Summary Judgment (Jan. 11, 2007). In June, the Cub Scouts used the hall. Id. A few functions were held in the fall of 1994 (an anniversary party and a soccer dinner). Id. From September of 1994 to 1996, weekly Boy Scout meetings were held in the hall. Id. From December 1994 to June of 1997, the assembly hall was leased to Lisa Franklin. Id. Ms. Franklin conducted aerobics and exercise classes and was also permitted to offer child care services for people taking the classes. Draft Lease (attached to the Answer to Interrogatories); various flyers for the Parish House Fitness Studio (same). From June 1997 to the time the Martinos answered the interrogatories, various functions were held at the property, including a charity event for the Topsfield Educational Foundation and numerous wedding receptions. Answer to Interrogatories at 2; Martino Function Report (attached to Answer to Interrogatories). These events have used the second floor, the outside lawn, and the kitchen on the first floor. Plaintiffs Response to Defendants Statement of Material Facts and Plaintiffs Additional Statement of Material Facts at ¶ 10 (Jan. 11, 2007) (admitted by the Martinos in ¶ 5 of their response since they did not deny such statement, simply noting that they will not characterize the documents cited therein). [Note 3]

On April 19, 2000, the Planning Board requested that the building inspector enforce the zoning bylaws, claiming that the Martinos had impermissibly expanded their use of the premises. [Note 4] On May 9, 2000, the building inspector declined to act on that request, finding that there was no expansion of use. The Planning Board timely filed an appeal of that decision with the ZBA. On August 24, 2000, the ZBA filed its decision, which allowed the Martinos to continue to use their property for assembly purposes and purported to impose conditions on such uses.

In its decision, the ZBA noted that [t]he Planning Boards position is that the number of wedding receptions and other functions has exceeded what was allowed under the 1994 building permit. ZBA Decision at 3. Although the Planning Board was the entity that appealed the decision of the building inspector to the ZBA, the Lopezes were also permitted to speak at the hearings. The ZBA noted that [t]he Lopez[es] legal position is that the building permit issued to the Martinos was for a residence on the first floor and a grandfathered assembly use on the second floor. According to the Lopez[es], the Martinos at minimum share the first floor with a residential and a commercial use. Id. at 4. The ZBA also noted that, like the Planning Board, the Lopezes argued that the Martinos use of the property impermissibly exceeded the number of functions that had previously been held by the church. Id. at 4-5.

The ZBA specifically made several findings. First, the ZBA found the following:

when the Building Inspector issued the building permit to the Martinos on April 7, 1994, he committed several violations of the By-Law. Specifically, he allowed a mixed residential and commercial use of the Property, which is not allowed by the By-Law. He then failed to require Site Plan Review, pursuant to Article X of the By-Law, despite the fact that there was a change of use from the religious exemption, under M.G.L. c. 40A, § 3, to a mixed residential/commercial use. The third violation was determining that the Martinos proposed use was grandfathered. In fact, the use of the Property was exempt from zoning and allowed by right under the By-Law, and therefore, there could be no grandfathering of a use by right Grandfathered uses are based on the existence of pre-existing non-conforming uses.

ZBA Decision at 6. However, the ZBA held that someone had to appeal such issues on or before April 7, 2000. Because no such action was filed, the Statute of Limitations has expired. Id.

Second, the ZBA disagreed with the building inspectors opinion that the use of the Property falls within a Community Facility as a recreational facility including country, tennis and hunting club, which is a use as of right in the Central Residence District. [Note 5] Id. Since the ZBA found that the property was neither a community facility nor a recreational facility, it held that the Martinos use of the Property is not as of right under the use classifications for the Central Residence District under Article III of the By-Law. Id. at 7.
Third and finally, the ZBA found that it ha[d] the authority to place limitations on the use of the Property, which include for example days and hours of operation, traffic controls, mitigation of noise and sight to abutters. Id. Despite recognizing that the building permit has an extremely terse description of the use, the ZBA stated that [t]he issue before the Board then is whether the Martinos have unlawfully exceeded the limitations in the building permit. Id. The ZBA found that the number of functions presently conducted at the Property is not excessive . . . . Id. Nevertheless, it went on to state that it [was] appropriate and within the Boards authority to set down limits that will guide both the present and future owners of the Property. Id. As a result, the ZBA imposed several conditions on the use of the Martinos property, including limitations on the number of events, limitations on the hours of operation, a requirement that there be a police detail for events with one hundred or more guests, parking restrictions, and a requirement to plant trees and/or shrubbery to provide a buffer between the Martinos and Lopezes properties. Id. at 8-9.

Other pertinent facts are included in the analysis section below.

Analysis

Exhaustion of Remedies

One of the plaintiffs issues in this case is the Martinos alleged improper use of portions of the first floor and lawn for functions. The Martinos have admitted to using the lawn and portions of the first floor for events, particularly the kitchen for catering events. However, so far as the record shows, the Planning Boards zoning enforcement request was regarding an alleged expansion of use. Specifically, the Planning Board argued that the number of events being held at the property exceeded that allowed by the original building permit. ZBA Decision at 3. [Note 6] This analysis thus begins with a fundamental and basic point. Only the Planning Boards request to the building inspector was properly before the ZBA and the Planning Board did not make any request for enforcement action regarding the use of the lawn or the kitchen on the first floor for functions. [Note 7]

Nonetheless, the ZBA discussed the use of the lawn and the kitchen in its decision. Specifically, the ZBA noted in its factual findings that [t]he first floor is used for access to the second floor and the first floor and the second floor both use the kitchen on the first floor. ZBA Decision at 2. It also noted that [t]here are outside cocktail hours on the westerly side of the building that are usually in the evening. Id. In addition, the ZBA outlined the Lopezes argument that the first floor is impermissibly being used for commercial uses. Id. at 4. The ZBA thus imposed a condition that [t]he Martinos shall make a clear separation between the first floor residence area and the function hall area. Id. at 9 (Condition 8). Finally, with regards to the use of the lawn, the ZBA also imposed conditions to minimize any impacts on the Lopezes property, including a requirement to plant trees or shrubbery as a buffer and a requirement that the outside cocktail parties end no later than 8:00 p.m. Id. (Conditions 6 and 7).

Since neither the Lopezes nor the Planning Board made a request to the building inspector to enforce the condition of the building permit (that the first floor be used solely for residential purposes) as part of the 2000 enforcement request, the building inspector never issued a written decision on this issue. [Note 8] Likewise, neither the Lopezes nor the Planning Board requested a determination regarding whether the building permit allows the Martinos to use the lawn for functions. [Note 9] Accordingly, the ZBA did not have the authority to reach these issues in its 2000 decision. Neuhaus v. Bldg. Inspector of Marlborough, 11 Mass. App. Ct. 230 , 231-32 (1981). This court also does not have jurisdiction over these issues in this case since the plaintiffs have failed to exhaust their administrative remedies with regards to these issues in this case. [Note 10] Id.

Statute of Limitations

G.L. c. 40A, § 7 outlines the statute of limitations for actions involving zoning enforcement. Specifically, it states the following:

No action, suit or proceeding shall be maintained in any court, nor any administrative or other action taken to recover a fine or damages or to compel the removal, alteration, or relocation of any structure or part of a structure or alteration of a structure by reason of any violation of any zoning by-law or ordinance except in accordance with the provisions of this section, section eight and section seventeen; provided, further that if real property has been improved and used in accordance with the terms of the original building permit issued by a person duly authorized to issue such permits, no action, criminal or civil, the effect or purpose of which is to compel the abandonment , limitation or modification of the use allowed by said permit . . . by reason of any alleged violation of the provisions of this chapter, or of any ordinance or by-law adopted thereunder, shall be maintained, unless such action, suit or proceeding is commenced and notice thereof recorded in the registry of deeds for each county or district in which the land lies within six years next after the commencement of the alleged violation of law . . . .

(emphasis added). The ZBA therefore was incorrect in ruling that any action challenging the use of the second floor for assembly uses must have commenced on or before April 7, 2000 since the six-year period commences from the date of the actual use (the violation) rather than the date the permit issued. Here, based upon the Martinos Answers to Interrogatories attached to the plaintiffs motion for summary judgment, the Martinos began holding functions on the second floor in May of 1994. Although the exact date upon which the functions began is not known, the Planning Board commenced its action on April 19, 2000 (at least two weeks before the six-year period would have run) by filing a written request to the building inspector. Therefore, if the Planning Boards request for zoning enforcement had involved the use of the second floor for assembly purposes, such request would have been timely. [Note 11]

Here, however, the Planning Boards request (so far as the record shows) was solely regarding an alleged expansion of use (i.e., the number of events held), not the use itself (assembly use). Such a request puts in issue only a contention that the Martinos were not using the property in accordance with the terms of the original building permit. The Planning Boards request for a determination of that issue is therefore not subject to the statute of limitations in G.L. c. 40A, § 7, which only time bars challenges to uses allowed by the building permit. [Note 12] Moreis v. Bd. of Appeals of Oak Bluffs, 62 Mass. App. Ct. 53 , 60-61 (2004); Lord v. Zoning Bd. of Appeals of Somerset, 30 Mass. App. Ct. 226 , 227-28 (1991). The ZBAs error with regards to the statute of limitations period is thus harmless.

The Martinos Use of the Property

The Martinos also have challenged the ZBAs determination that the use of the property for functions is not an as of right use. [Note 13] Specifically, the Martinos claim that the assembly use is permitted as of right in the Central Residential District because it is a community facility. In the alternative, the Martinos claim that a challenge as to the use of the property is barred by the statute of limitations.

In its decision, the ZBA found the following:

[t]he Property is not a community facility in its strict sense because it is used by the Martinos primarily for private functions. It is also not a recreational facility, using its plain meaning, such as the types included in the descriptions  country, tennis and hunting clubs. These types of clubs do hold wedding and other functions, but that is not their primary use. The Board interprets this classification more narrowly than the Building Inspector and would not classify the Martinos use of the property as a Community Facility.

ZBA Decision at 6-7. As a result, the ZBA held that the Martinos use of the Property is not as of right under the use classifications for the Central Residence District under Article III of the By-Law.

The parties did not provide the court with a complete copy of the relevant bylaw and therefore I cannot determine whether the ZBA was correct when it ruled that the Martinos use of the property was not an as of right use because it did not fit within the definition of a community facility or recreational facility. The Martinos shall thus promptly file a complete copy of the relevant zoning bylaw. After its receipt and review of that bylaw, the court will issue a ruling on the papers for this question.

As to the Martinos use of the property for functions, the ZBA upheld the building inspectors decision that there was no expansion of use. ZBA Decision at 7 (The Board finds that the number of functions presently conducted at the Property is not excessive). The ZBA had jurisdiction to decide this issue since the Planning Board timely appealed from the building inspectors decision and since the G.L. c. 40A, § 7 statute of limitations did not apply to this issue. [Note 14] See Statute of Limitations Discussion, supra.

As noted above, so far as the record shows, the Planning Board argued that the number of events impermissibly increased from what was allowed by the building permit (and as compared to the Churchs previous uses). ZBA Decision at 3. The ZBA found that [t]he number of weddings and functions have increased steadily since 1994. ZBA Decision at 2. However, since the original building permit did not contain any limitations regarding the number of events that could be held, there cannot possibly be an expansion of use. [Note 15] Summary judgment is therefore appropriate on this issue

Conclusion

For the foregoing reasons, both the Martinos and Lopezes motions for summary judgment are ALLOWED in part and DENIED in part. The Planning Board, whose request for enforcement action is the sole basis for jurisdiction in this case, did not include in that request the issue of whether the Martinos use of the property for assembly use is improper. Accordingly, this court does not have jurisdiction to reach that issue in this case. Although the ZBA erred in determining the statute of limitations ran on actions challenging the use of the second floor for assembly use, such error was harmless since no such action was initiated. Finally, the ZBAs decision upholding the building inspectors decision that there was no expansion of use (i.e., no increase in the number of events) is upheld. Since the original building permit placed no restrictions on the number of events, there cannot possibly have been an expansion of use (i.e., there cannot have been an impermissible increase in the number of events held). Judgment shall issue after the parties brief, and this court decides, the issue of whether an assembly use is an as of right use (see discussion above).

SO ORDERED.

By the court (Long, J.)

FOOTNOTES

[Note 1] Since the parties did not provide the building inspectors written decision, it is unclear whether this opinion was part of his decision or a separate opinion letter.

[Note 2] The final certificate of occupancy was issued on December 7, 1994.

[Note 3] The Plaintiffs Motion to Submit Deposition under MRCP 56(e) is DENIED since its contents (the Martinos use of the kitchen for functions) are not material to the issues in this case and were not contested by the Martinos.

[Note 4] The parties did not file the Planning Boards written request in the record. This description of the request is found in the ZBAs decision and is directly quoted in the plaintiffs complaint. It is therefore binding on them pursuant to G.L. c. 231, § 87.

[Note 7] In 2005, the plaintiffs did file a request for zoning enforcement regarding the Martinos use of the first floor for commercial purposes. This 2005 request, however, does not appear to involve the use of the lawn. The building inspector denied that request and the denial was upheld by the ZBA. The plaintiffs appeal of that decision is the subject of Miscellaneous Case Number 317495. That case is still pending and the parties have not filed dispositive motions in that case.

[Note 8] Again, this statement is based upon what is part of the record in this case.

[Note 9] Although the Martinos and Lopezes have briefed the issue regarding whether the Martinos are permitted to use the lawn for assembly uses, this issue, like the use of the kitchen, was not properly before the ZBA and this court cannot reach this issue. Neuhaus v. Bldg. Inspector of Marlborough, 11 Mass. App. Ct. 230 , 231-32 (1981).

However, I note (without deciding) that the use of the lawn appears to be proper as an extension of the use of the second floor for assembly use. The ZBA clearly believes so. ZBA Decision at 9, Condition 7 (Any outside cocktail parties (hours) shall end no later than 8:00 P.M.).

[Note 10] The issue of the use of the kitchen for functions will be decided in Miscellaneous Case Number 317495. See n. 7, supra.

[Note 11] The fact that the Planning Board failed to record notice of the proceedings is not fatal in this case. Westfield v. Saia, No. 07-P-879, 2009 WL 275768, at *4 (Feb. 6, 2009) (Memorandum and Order Pursuant to Rule 1:28) (citing Vokes v. Avery W. Lovell, Inc., 18 Mass. App. Ct. 471 , 483, n.20 (1984)). As in Westfield and Vokes, the only parties that could be prejudiced by the Planning Boards failure to record notice . . . [are] the parties to the action. Id. Here, the Martinos had notice of the enforcement action, participated in the ZBA proceedings, and are parties in this case. Therefore, the failure to record notice is a harmless error. Id.; Vokes, 18 Mass. App. Ct. at 483, n.20.

[Note 12] The plaintiffs argument that the building inspector erred in issuing a building permit that purportedly allowed the second floor to be used for a grandfathered assembly use, however, is likely subject to the six-year statute of limitations in G.L. c. 40A, § 7 unless it is determined that assembly use lacks the particularity required to trigger the protection of § 7. Moreis v. Bd. of Appeals of Oak Bluffs, 62 Mass. App. Ct. 53 , 59 (2004). As noted above, neither the Planning Board nor the Lopezes requested zoning enforcement regarding this issue. Assuming § 7 applies (i.e., that assembly use is sufficiently particular to come within the protections of § 7), the six-year period would have ended in May 2000 (six years after the first actual use of the property for assembly purposes). Since no proceeding (i.e., a written request to the building inspector) was initiated before the end of May 2000 regarding the use of the second floor for assembly uses, the plaintiffs would not be able to challenge that use. G.L. c. 40A, § 7; Garabedian v. Westland, 59 Mass. App. Ct. 427 , 437 (2003). However, since this issue was not properly before the ZBA and thus is not properly before this court, I need not and do not decide this issue. Neuhaus, 11 Mass. App. Ct. at 231-32.

I note, however, that the building inspector incorrectly characterized the use as a grandfathered use. The ZBA stated that since the use of the Property was exempt from zoning and allowed by right under the By-Law, . . . there could be no grandfathering of a use by right. ZBA Decision at 6. The Churchs use of the property was, as the ZBA correctly noted, exempt from zoning under G.L. c. 40A, § 3 and therefore was not grandfathered. The plaintiffs also supplied a copy of the table of use regulations (presumably for the relevant time), which identifies a church as P in the Central Residential District. Complaint at Ex. D. Assuming that this table was an accurate copy, was part of the zoning bylaw for the relevant period of time, and that this identification means a church is a permitted use in the Central Residential District, the ZBA also was correct in stating that the Churchs use of the property was an as of right use and, as a result, there could be no grandfathering. Furthermore, once the Martinos purchased the property, the property lost its exempt status and since the use was not a pre-existing nonconforming use, it did not obtain grandfathered status at that point. See Watros v. Greater Lynn Mental Health and Retardation, 421 Mass. 106 , 115 (1995) (it rightly cannot be said that [a G.L. c. 40A, § 3] use is a nonconforming use).

[Note 13] In Miscellaneous Case Number 266213, the Martinos have also appealed from the ZBAs decision, arguing that the ZBA lacked authority to impose conditions on their use of the property for functions. Although Miscellaneous Case Number 266213 was consolidated with this case, this issue was not specifically addressed in the parties motions for summary judgment in Miscellaneous Case Number 266300. Accordingly, this memorandum and order does not reach this issue and Miscellaneous Case Number 266213 remains open.

[Note 14] Again, as discussed in notes 9 and 12, the only issue properly before the ZBA and this court with regards to the use of the Martinos property is whether the number of events has impermissibly increased beyond that allowed in the original building permit.

[Note 15] Despite the fact that the zoning bylaw (and its definition of expansion of use) is not part of the record, I can reach this issue since there can be no other logical conclusion. Simply put, if the building permit did not contain a limitation, no limitation exists. No one argued that the bylaw in effect in 1994 (when the building permit issued) contained a maximum number of functions as part of its use definition and it would be a highly unusual bylaw if it did. Contrast this with special permit situations, where limitations are often imposed.